Breastfeeding Laws Across the U.S. By Rebekah Curtis. For

Why the new pro-breastfeeding laws may actually limit women’s rights. by Rebekah Curtis

May 18, 2009


Modern breastfeeding requires a lot more than breasts. There are the bizarre pillows and complicated clothes we must purchase, the machines we’re not supposed to find terrifying and BPA-free receptacles for what the machines extract, the leagues and coalitions for us to join. And then there are the parties in the mommy-blog comments we’re expected to attend whenever our congressional representatives pass another law about all of it.

Well, why not? Isn’t it great that breastfeeding is going mainstream, that people are finally noticing nursing? Aside from the fact that many of us would rather not be noticed when we’re feeding the baby, breastfeeding has been going mainstream for over fifty years. But it’s only in the last fifteen years that politicians have seen fit to get involved, when the state of Florida decriminalized public breastfeeding.

Right, decriminalized. Prior to 1993, breastfeeding in the sunshine in the Sunshine State may have been unnatural, lewd, lascivious, exposure of sexual organs, child sexual abuse, and/or harmful to minors. You can take your pick, because all the legislature did was state that as of the passage of the bill into law, public breastfeeding could not be prosecuted as any of those things. What a relief! Mothers back in ’92 couldn’t be sure if they were feeding their kids or molesting them.

There was a time in this country when a nursing mother could be ticketed for indecency while nursing her baby in her own parked car, but was it 1993 (or, in the case of unenlightened Massachusetts, last December)? American breastfeeding rates among mothers of newborns more than doubled between the founding of La Leche League in 1956, when they were around 20%, and 1990, when they were near 50%, even recovering from a decline throughout the ’70s. Somehow, breastfeeding propagated itself during that time without any laws saying it was okay.

Florida’s 1993 law inspired other legislatures. By now, most states have laws affirming that women either have a positive right to breastfeed in public, or cannot to be prosecuted for indecency if they do. State representatives love nothing more than feel-good, risk-free laws guaranteed to win them points with special interest groups. Public breastfeeding laws easily fit into this category, especially when laws claiming to protect public breastfeeding include no enforcement provision (most don’t). And maybe we could just let the politicians have their fun if several states hadn’t seen fit to improve on nature.

For example, here’s the how the Missouri state legislature went about protecting public breastfeeding: A mother may, with as much discretion as possible, breastfeed her child in any public or private location where the mother is otherwise authorized to be. (R.S.Mo. 191.918) Print out this card for the next time you’re publicly breastfeeding in Missouri and someone hassles you about it. Go on, educate that benighted soul. Wait – she says you’re not using as much discretion as possible? Well, who’s to say which of you is right?

Thanks a lot, Missouri. I hope this law included funding to cover my Motherwear and Bebe au Lait bills. Will that be enough discretion? Maybe we should just go sit in the bathroom. It’s a public bathroom, so I’m allowed to nurse the baby there. With as much discretion as possible, obviously. The North Dakota state legislature, following Missouri’s lead, has a bill in the works which would ostensibly protect nursing in public as long as mothers “act in a discreet and modest manner.” (Georgia’s 1999 public breastfeeding law also included a “discreet and modest” provision, but a 2002 amendment struck the language.)

Why the new pro-breastfeeding laws may actually limit women’s rights. by Rebekah Curtis

May 18, 2009

Here’s that new Massachusetts law: A mother may breastfeed her child in any public place or establishment or place which is open to and accepts or solicits the patronage of the general public and where the mother and her child may otherwise lawfully be present. (Chapter 111 Section 221 MA General Laws). Fair enough, but then: A place of religious instruction or worship shall not be subject to this section. If someone at your niece’s bat mitzvah or wedding Mass – some of the main public places where a mother is likely to have a baby with her and need to keep it quiet – doesn’t want you feeding the baby there, the law is too embarrassed to back you up.

Illinois also perceived a potential church/state conflict and handled it by stipulating, a mother considering whether to breastfeed her baby in a place of worship shall comport her behavior with the norms appropriate in that place of worship. (740 ILCS 137/10) What norms would those be? Do most places of worship issue breastfeeding guidelines to those in attendance? The religious exemptions make breastfeeding look suspect by calling attention to the fact that we are, after all, talking about lactating breasts, and maybe those are too icky for something as serious as a place of worship. In which case . . . breastfeeding is back to being icky. (Illinois went the extra mile to demonstrate breastfeeding squeamishness, since the state is one of a few with a Religious Freedom Restoration Act providing an explicit legal protection process for religious exemptions from potentially oppressive laws.)

There is more to breastfeeding law than public breastfeeding, but maybe not as much as you’d like. A lot of legislatures are content to check breastfeeding off their to-do list as soon as they pass a toothless “Breastfeeding is nice!” law. But only eleven states, for example, exempt nursing mothers from jury duty. Elizabeth Jett of Connecticut must have wished she lived in one of them. Last year, a judge refused to excuse her and finally held her in contempt after she decided to keep nursing instead of contracting mastitis in a jury box.

Despite the media attention Ms. Jett’s case drew, the Connecticut General Assembly currently has no bill on its floor to spell out for a doltish judge whom they know to exist that a lactating woman can’t sit in a courtroom all day. Why would they need one? They did their part over ten years ago when they benevolently declared it legal to breastfeed on the streets of Connecticut.

Any law that specifies when, where, or how breastfeeding may be done limits the freedom of mothers and babies to nurse. A few states have factored breastfeeding into custody battles. Maine and Michigan both legislated that during a child’s first year of life, judges must take breastfeeding into account when determining parental custody. While granting legal weight to breastfeeding, these laws also restrict the freedom of mothers to make decisions about weaning (whether for the benefit of the child or the detriment of the father) by imposing a time limitation on that legal protection.

Perhaps the breastfeeding issue with the greatest potential empirical impact is milk expression in the workplace. Some states mandate that clean facilities and sufficient time for pumping on the work site be made available to nursing mothers, while others boldly “encourage” it. The Iowa legislature is working on a bill requiring employers to provide expression time unless it would “unduly disrupt the operations of the employer.” But most ignore this uncomfortable question which is likely to get them into trouble with employers. They’re pleased enough with themselves for having scribbled out a while back that women who breastfeed at the playground are not criminals.

The advent of breastfeeding law has shown that, whether substantive or cosmetic, it is not an unmitigated good. Any law that specifies when, where, or how breastfeeding may be done limits the freedom of mothers and babies to nurse. It’s not worth having a law “protecting” a personal lifestyle choice if that law is prescriptive or ambiguous. As soon as legislatures begin adding qualifications, they are not protecting but regulating; creating legal limits where none used to exist.

The question is, which breastfeeding rights need protection desperately enough to make it worth risking existing freedoms? There are strong arguments to be made for legislation governing concrete issues like milk expression in the workplace and exemption of nursing mothers from jury duty. But regardless of the issue, parents would do well to remember that the more defense of our personal rights we outsource, the more likely we are to find ourselves, say, being scolded about our private lives by commercials underwritten by our own taxes. Don’t forget, failing to breastfeed exclusively for your baby’s first six months of life is the moral equivalent of logrolling during pregnancy, you selfish degenerate. The contemporary god of individual, national, and environmental health, divine as health may be, is not above vilifying people who make corporately unhealthy choices, even when those choices are extremely personal. How ’bout that obesity epidemic?

Why the new pro-breastfeeding laws may actually limit women’s rights. by Rebekah Curtis

May 18, 2009

Women have a right to decide whether or not they breastfeed, and other people have a right not to like it. When women who nurse in public are confronted for it, they aren’t getting arrested, but being asked to cover up or relocate. It may be ignorant and offensive (though it would perhaps also be unwise to rule out the possible existence of offensive ways to breastfeed in public) but all it really amounts to is a set of hurt feelings, from which it isn’t the government’s job to protect people. If it were, the government’s first order of business tomorrow morning should be prohibiting comments on the appearance of postpartum women.”You can’t feed the baby here” is silly, but it’s not assault and battery, or even hate speech. Anyone whose nips can handle a child attacking them eight times a day clearly has thick enough skin to come up with a fitting reply and stand up or, more likely, remain seated for her baby’s natural right to eat when and where he’s hungry.

So do the current legislative sessions of Washington and Wisconsin really need to give public breastfeeding the official thumbs up when they’ve both already passed laws explicating that it isn’t indecent? Are there some unclaimed benefits for nursing mothers that could be made available with even more public breastfeeding laws (risking the restrictions other states have tacked onto such laws, like the one North Dakota is considering right now)? Or would breastfeeding moms gain more from laws establishing “baby-friendly” standards to ensure good PR for employers who generously accommodate breastfeeding mothers (another provision in the North Dakota bill)? From the busybody public health perspective, which of those two laws would result in more babies getting more breastmilk? And considering the benefit to public health, why not throw in a tax break for employers who make it easy for working moms to keep nursing? We can get businesses to bankroll more breastfeeding guilt trips for mothers! Everybody wins!

Breastfeeding has made its gains not through the law, but through the sea change brought about by individual women.Breastfeeding proponents must be discriminating in their advocacy of breastfeeding law, opposing unnecessary proposals which deflect congressional attention from truly important breastfeeding issues, and granting careful scrutiny to bills which would potentially regulate those issues and restrict existing freedoms. History shows that breastfeeding has made its greatest gains not through the law, but through the organic social sea change brought about by individual women who nursed their babies and pumped in bathrooms when those things were really weird. It was their work that brought about society’s increasing openness to breastfeeding, even to the point of making legislatures willing to rubber stamp public nursing laws and consider more material laws relating to breastfeeding.

A poorly written law can impede the freedom of mothers and babies to nurse, and exacerbate public queasiness and hostility toward breastfeeding. But an actual nursing mother and baby can change the attitudes of those who know them, as actual nursing mothers and babies have been quietly proving for decades. In the meantime, the New York General Assembly will keep toiling to pass its fastidiously wrought “Breastfeeding Mothers’ Bill of Rights.” This bill will, among other things, explicate that nursing moms are allowed to refuse commercial samples. Until it passes, you’ll just be stuck thinking you have to take home those junk bags from the formula company.

For more information, see:

North Dakota public breastfeeding bill with modesty clause

New York Breastfeeding Bill of Rights

Iowa bill requiring pumping accommodations if not disruptive to employers

Washington public breastfeeding bill

Wisconsin public breastfeeding bill

Article Posted 6 years Ago
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